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Liberal Rights to Abortion in a Patriarchal Context

By Sahaana Ramesh

Views expressed in this article are purely personal.

The recent split verdict delivered by the Supreme Court on a petitioner’s request to terminate her 26 week old pregnancy has brought India’s abortion rights to the centre stage once again. Her plea was rejected on grounds that she had crossed the 24 week mark and allowing her to terminate her pregnancy would be a violation of sections 3 and 5 of the Medical Termination of Pregnancy Act. Until the 1970s, abortion was illegal and a punishable offence under section 312 of the Indian Penal Code wherein the pregnant person seeking abortion could face three years of imprisonment and a fine. The setting up of the Shantilal Shah Committee in the mid 1960s laid the first stone for legalising abortion in India. In 1964, the Committee headed by medical practitioner Dr. Shantilal Shah, suggested the liberalisation of abortion laws in India, which was to help in reducing unsafe abortions and decrease maternal mortality in the country. Based on the report submitted by the committee, a medical termination of pregnancy bill was introduced in both houses of the parliament in August 1971 and The Medical Termination of Pregnancy (MTP) Act came into force on April 1, 1972. This act sets the gestational limit for abortion at 20 weeks with approval of two doctors, beyond which abortions may only be performed, barring a court order to the contrary, when there is risk to the life of the pregnant person. Furthermore, the Act offers protection to registered medical practitioners for any injury caused to the pregnant person during an abortion procedure as long as the procedure was carried out according to the provisions of the MTP Act.

According to a study titled ‘The MTP 2020 Amendment Bill: anti-rights subjectivity’ published in the Sexual and Reproductive Health Matters Journal, the primary purpose of the MTP Act, 1971 was “population control and family planning’’. The law, the study said, was “doctor centric and over medicalised abortion, stripping pregnant persons of their right to bodily and decisional autonomy and vesting the decision to abort with the doctor”. Over time, several amendments have been made to the act in 2003 and subsequently in 2021 that expanded the scope of the Act by extending the permissible period of gestation to 24 weeks and included within its purview unmarried women as well. Prior to the 2021 amendment, abortion was legally sanctioned solely for married women under any circumstances. Though the amendment was more inclusive than its predecessor law, it still fails to include LGBTQ persons within its ambit. Moreover, the discretionary powers of the courts in cases of pregnancies exceeding 24 weeks have produced very inconsistent results with some courts being progressive and others not. A Pratigya campaign study showed that between 2016-2019, a total of 194 writ petitions were filed by women for medical termination of their pregnancies in the SC and High Courts all over India and even though each case emerged from a uniquely disturbing set of conditions, the judgements were immensely varied. According to Pratigya, this lack of uniformity “dilutes the credibility of a legislation that affects the lives and bodies of women. It also makes women lose faith in the judiciary and its ability to recognise the choice of women in what happens to their bodies.” 

In light of these circumstances, it is evident that the high moral ground assumed by Indians with respect to abortion laws in our country is very flimsy. This was especially the case when feminists and medical practitioners all over the world were condemning the overturning of Roe vs Wade in the United States of America that stripped pregnant persons in the USA of legal protection and vested individual states with the power to grant or curtail abortion rights. Indians, during this time, were seen hailing their abortion laws. While we may be several steps ahead of other countries that refuse to provide even the bare minimum to its citizens, we need to introspect on the shortcomings of our own abortion laws and keep working to fix them. The first step in that direction ought to be recognising and weeding out the heteronormative and patriarchal bias in our abortion laws and subsequently formulating a rights based framework that holds bodily autonomy of pregnant persons as paramount.

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