The development of abortion laws has been a complex journey spanning centuries of history, societal attitudes, and policy changes. Examining this evolution provides an invaluable context for understanding the country's present-day stance on the issue and the ongoing efforts to widen access to safe and legal abortions for its citizens. While India's abortion laws are considered progressive compared to many other nations, there is still room for improvement in public awareness, education, and implementation.
Equal rights and human rights for all in this new liberalized era are the factors that ensure legal freedom for all. While equal rights for all gender seems like an evident disposition of liberalization, it is shocking to notice that a massive gap exists between the rights offered and people being able to enjoy those rights unfettered. Reproductive rights in most countries are provided through legislation, but how many are acceptable to women of corresponding countries is still to be answered.
Abortion laws that exist today result from various factors and have seen a jolting projectile over the years. The movement for liberalization of abortion laws started somewhere in between of civil rights movement in America. It could be traced beginning in the 60s and reaching India simultaneously. While a new country, India had its constitution written just a decade before and was way too forward towards the liberalization of abortion laws. Even the deliberation on the issue started in the mid-60s.
Our country has had liberal legislation on abortion since 1971. The law on abortion M.T.P.A.,1971(Medical Termination of Pregnancy Act,1971) was amended in 2002,2003 and recently in 2021. Before the MTP Act came into existence, abortion was criminalized under The Indian Penal Code, 1860 section-312. Even after 50 years of M.T.P.A., abortion is still criminalized, and the MTP Act works as an exception only.
During the 1960s, 15 countries had abortion legalized, which led to further deliberation of partial legalization of abortion in India. Apart from India, the U.S.A. considered a liberal country, got abortion law liberalized even after India in 1973. What is ironic is the fact that when in India, through the amendment act of 2021, abortion has been liberalized even more, and at the same time, in the U.S.A., Roe vs Wade has been overruled.
Legalization of abortion is a pretty contentious topic in contemporary times; the two poles of argument consist of one argument stating that the unborn baby, that is fetus, also has a right to life and another opinion stating that women have a right over their body which is to have remained unfettered. Keeping aside the argument of both sides, we have to be mindful towards the fact that there is a long gap between the actual implementation of the law and a plethora of people having no knowledge of the legislative remedies that they can acquire regarding the same.
EARLY RECORDS OF ABORTION-
Abortion as a practice can be traced back to primitive periods, too; there are records of Chinese documents which state that there had been abortions of many Chinese concubines during 500-515 BC.
However, the first evidence of induced abortion could be traced back to 1550 BC. Many early laws and doctrines focused on the concept of Quickening, which was used to differentiate between a living foetus and a fetus not having a life. Greek and Roman records of abortion can be found in classic works of literature; in many of those, it is mentioned that women mainly performed abortion as a gynaecological procedure, and some records show that it used to be the Midwife.
Let's look at the early history of abortion in India. There is a Sanskrit text dating somewhere during the 8th century which states that women wishing to induce abortion could sit over steamed pots or stewed onions.
Looking at legal history, we can trace it back to ancient times. While Romans were the first to accept abortion in a regulated form, if we look at widespread acceptance of restricting women's right to abortion, it comes as late as the 13th century. Roman law did not distinguish the fetus as a different entity from the mother in the earlier period. It was frequently practised for controlling the population, maintaining one's physical appearance and adultery.
In the later Roman period, for a while during the reign of Septimius Severus, abortion was banned on the ground that it was violative of parents' rights and was also punishable by temporary exile. In the later Roman period, abortion legislation was more concerned with population control rather than with general morality.
It is rather unclear when the widespread regulation of abortion started. Still, from the records, it could be said that somewhere during the 18th century, countries started considering the regulation of abortion, mainly Western countries. The technique of Quickening was used to distinguish and for the practice of abortion during the 18th century, and it was a widely accepted practice.
Many nations had already passed legislation to ban abortion during the late 19th century, and by the 1950s, many Western countries liberalized abortion laws. In 1803 Britain first passed anti-abortion laws, which only became stricter throughout the century, and then the U.S.A. followed; most of the individual states illegalized abortion till the 1880s. Illegalizing abortion did not mean that incidents of abortions just magically disappeared from the face of the world; it just meant that it became more unsafe, expensive, and challenging to acquire. In America and even in Britain, many liberal and feminist groups started the movement for the legalization of abortion.
Furthermore, it was all inspired by civil rights and antiwar movements. These movements did not succeed at once, but after a long struggle, they succeeded, by 1960s some states in America liberalized abortion law but only for certain circumstances, like- If there is a case of pregnancy after rape or incest or there is a girl who is below 15 and is pregnant—in 1970 state of New York allowed abortion till the 24th week from the date of the last menstrual period under the condition that it has to be done under the supervision of medical authority.
Legalization of abortion at such a liberalized pace attracted many women looking for safe abortions to New York, which was a good thing. However, it did not neglect that illegal abortion was still common, and even travelling to New York to get an abortion was not the most cost-efficient choice.
Now comes the probably most famous case concerning abortion, The Roe vs Wade case1. In 1973 continuous movements of different liberal groups and constant legal struggle in the supreme court led to the decision of S.C. in favor of women activists.
Roe vs Wade-
It is a landmark case that comes to everyone's mind whenever there is any discussion about the legal history of abortion. This case is just a reference for some, but it was an achievement as significant as the first landing on the moon for the women activists who were willing to give their all to have a sense of liberty over their bodies.
In a majority opinion of the case written by Justice Harry A. Blackmun, it was held that under the provision of the 14th amendment, which guarantees "equal protection of the law", the state cannot restrict a women's right over there body as it comes under the purview of liberties which is offered under 14th amendment. Unknown to many, no one by the name of Roe moved to the U.S. supreme court for remedies concerning women's rights over their bodies. "Jane Roe" was the fictional name that Norma McCorvey (1947-2017) used to maintain anonymity.
The case began in 1970 when a resident of Texas state, Norma McCorvey, filed a suit against Henry Wade, Texas. The court did not support the point of Roe totally. She put the argument that- Women should have total autonomy over their bodies whatsoever, and nobody should be able to interfere with their rights. However, the court ruled that "only compelling state interest" should be the legitimate ground in restricting the "fundamental rights" of any citizen of the U.S., and the court tried not to limit the state's legitimate compelling interests, such as the health of pregnant women and the right to life of a fetus.
The court attempted to put a point where the fetus is able to form some life or the point where abortion would not be harmful to pregnant women. The court decided to set the point at the Trimester of the pregnancy or the 24th week of pregnancy. This case had a massive impact on women activists, liberal groups and the general public, too, but recently on June 24, 2022, the U.S. Supreme Court overruled the historical case and gave the states the individual right to rule over the legislation regarding abortion.
Legislative development of abortion laws in India
Legislation against abortion in India was mentioned in the Indian penal code 1862 for the first time and was derived from the British offences against the Person Act, 1861, which illegalized abortion, leaving few exceptions considering the goodwill of women. In India, legislation over abortion was initiated roughly during the 1960s when many European countries started legalizing abortion in their respective countries. Shantilal Shah, then minister of public health, law and judiciary, commented that our country's abortion law is way too restrictive and that we needed to liberalize it.
Besides the widespread belief that various women's movements led to liberalized abortion laws, the absolute truth is that it was more of a planned scheme that intended to control the incessantly increasing population of the country. For legislating abortion in India, a committee was formed which was headed by Shantilal Shah in 1978. The committee recommended that abortion laws should be liberalized by giving the logic that illegal abortion is increasing despite the fact that abortion is criminalized; the rules for the same would help in curbing unsafe abortions and would also help in reducing maternal mortality.
These endeavors of the committee led to the drafting of the Medical Termination of Pregnancy Act, 1971, which came into force on April 1, 1972, and it was applicable to the whole of India, leaving an exceptional case of Jammu Kashmir, which was later extended to Jammu and Kashmir too in 1974 by passing a particular act- The Jammu and Kashmir Medical Termination of Pregnancy Act,1974. The act was once again edited and amended in 1975. The MTP Act of 1971 gave medical practitioners the liberty to perform an abortion under certain circumstances, and it allowed abortion till the 20th week of pregnancy.
In 1975 Rajasthan government, they have passed their own legislation regarding abortion. Abortion Law was amended again in 2002 to regulate the use of then-released new drugs like- abortion pills, mifepristone, and misoprostol. Now comes the most recent amendment in the law, which came in 2021 and will be further discussed in the coming sections.
If we are talking about Important judgements regarding abortion, the very first case which comes to our consciousness is Roe vs Wade. As we have already discussed Roe vs Wade in detail earlier, we are not going to delve further into that, but we are going to focus more on judgements heard in India. MTP Act legislates abortion till the 20th week, but when instant abortion is necessary for the survival of a woman who is pregnant, then the MTP Act's limit ceases to be applicable. There have been many incidents where some women had to approach the court to get permission to abort in exceptional circumstances where the age of the fetus crossed the period of gestation as described in the MTP Act.
Suchita Srivastava & Another v. Chandigarh Administration
This is one of the landmark cases on abortion and the bodily integrity of women too. Facts of the case- An orphaned woman living in Chandigarh was considered mentally retarded and had no shelter, so she was sheltered in a government-run institution for orphans. She was later impregnated as the result of a rape. Furthermore, when the matter reached to Punjab and Haryana High Court, it was held that the woman was in no position to raise a child on her own as she herself had the mental capacity of a nine-year-old and she also had no one else whom she could call upon to help her. This judgement, although intended to ensure the best for the plaintiff, lacked the consent of the woman herself; later, the judgement of the Punjab and Haryana High Court was challenged in the supreme court. Supreme Court took a more liberalized approach towards the issue. S.C. first stayed the order of the Punjab and Haryana court and said that the reproductive right of women is enshrined in Article 21 of the Indian Constitution and that every woman has bodily integrity and an unfettered right to make reproductive choices of their own. The statement of the court was as follows-
"There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods."
MTP Act, before the 2021 amendment, had the provision that abortions before the gestation period are allowed by certified medical practitioners only, and after the gestation period only under a few circumstances, it would be allowed that too after the recommendation of the medical board. There have been many progressive judgements regarding abortion after the gestation period. Some of them are as follows-
In April 2020, the high court of Kerala approved the abortion of a 14-year-old rape survivor after the report of the medical board.
Calcutta High Court allowed the abortion of a 35- year- old foetus after getting the approval of a medical board that the baby born would have a very severe spine condition.
In February 2022, Karnataka high court allowed the termination of the pregnancy of a 16- year- old rape survivor while she was in her 28th week of pregnancy.
Kerala High Court in March 2022 allowed the termination of the pregnancy of a 10- year- old who was raped by her own father.
Although there have been many cases that have set unprecedented statements, there is a need for relaxing the process of approval for abortion after the 24th week as there have been many cases where the immediate remedy was needed, the long due process of going to court and then referring the matter to the medical board has rendered the victim in grave injustice. The jurisprudence of abortion in India has come a long way from where it started.
Abortion is common all around the world, and it has been in contention for years. There are different types of legislation on abortion in different countries- Many have illegalized it totally, many have partially legalized it, and few have significantly liberalized legislation on abortion. Around 24 countries have outrightly banned abortion, according to a report by the Center for Reproductive Rights. These countries not only have illegalized it but also have put heavy punitive measures on the culprit, either who have done an abortion or the one who has induced it.
Countries like India have partially legalized abortion; for example, it is only allowed under certain circumstances while keeping the gestational limit in consideration. Many Western countries, apart from Australia and Canada, have significantly liberalized abortion laws. Other than the reasonable gestational limit, there are very few limits. While some African countries have illegalized abortion, the intention of decreasing abortion has been utterly unsuccessful, as the outright ban has only raised the number of illegal abortions and maternal mortality.
Comparing India's abortion law with the world, it is more liberal than most countries. While lagging behind some, it still is somewhat more liberal than the United States of America's law on abortion.
The historical development of abortion laws worldwide and particularly in India, illustrates a complex interplay between societal values, legal systems, and healthcare policies. While India has made significant strides in liberalizing its abortion laws, the gap between legislation and actual implementation remains an ongoing challenge. To address this, three main aspects should be focused on: 1. Public Awareness: The government, NGOs, and healthcare providers should collaborate in awareness campaigns about legal abortion services, emphasizing the importance of safe and accessible reproductive healthcare. Efforts should be tailored to bridge the knowledge gap in rural areas, addressing cultural and social barriers to accessing these services. 2. Comprehensive Sex Education: Incorporating sex education into the curriculum can foster informed decision-making and improve understanding among both adolescents and adults about reproductive rights and contraceptive methods. Education should be age-appropriate and emphasize consent, bodily autonomy, and the importance of adhering to legal avenues in cases of abortion. 3. Policy and Implementation: It is crucial for policymakers to continue reviewing abortion laws with a more nuanced understanding of the various dimensions and challenges women face when seeking abortions. Streamlining the approval process for abortions beyond the current gestational age, addressing any gaps in healthcare infrastructure, and providing affordable, safe, and accessible abortion services are vital measures. By adopting these comprehensive strategies, India can move towards truly safeguarding the reproductive rights of women, promoting their well-being and ensuring that legal provisions surrounding abortion are effectively realized and practised throughout the country. Ultimately, this aligns with the broader goal of fostering a society where every individual can make informed decisions about their reproductive choices, free from fear or stigma.
Roe v. Wade, 410 U.S. 113 (1973)
Suchita srivastava v. Chandigarh administration,(2009) 14 SCR 989, (2009) 9 SCC 1
X v. Union of India, W.P.(C) No.26103 of 2022
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