Are women able to exercise the right to safe abortion in India?

By: Yash Gupte

The court further added that “In the evolution of the law towards a gender-equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history.

The Supreme Court in its landmark judgment on September 29^th said that all the women in India, irrespective of their marital status have the right to legal and safe abortion under the Medical Termination of Pregnancy Act (MTP Act). The bench which delivered the historic judgment was headed by Justice D.Y. Chandrachud which observed that every woman in India has the right to abortion of pregnancies up to 24 weeks. This judgment comes at a time when the women’s autonomy on their bodies is under threat on a global level in countries like USA. Other than making the right of abortion available to the unmarried women, one of the most important observations made by the Supreme Court was that the ‘rape’ mentioned as a reason for termination of pregnancy will also include ‘marital rape.’

The Supreme Court in its judgment said that disallowing the unmarried or single women to terminate the pregnancies will be a violation of Article 14 of the constitution and therefore the right to abortion should be made available to all the women. Considering the historic and landmark judgment of the Supreme Court, India Tracker takes a look at the reason behind abortion and the rate of unsafe abortions in India

The MTP Act of 1971 and its 2021 amendment were discussed by the bench of D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala which noted that "the Act of 1971 was principally concerned with 'married women.' Significantly, the 2021 Statement of Objects and Reasons does not establish a distinction between married and unmarried women. Instead, all women have a right to the advantages of safe and authorized abortions. The court further added that “In the evolution of the law towards a gender-equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.”

Source: National Family Health Survey-5

Unplanned pregnancies was the main reason for abortions in India. Apart from the unplanned pregnancies, women decided to go for abortion as their first child was too young. One thing which needs to be observed here is that despite India banning prenatal sex-determination testing in the Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994, 2.1% of women decided to abort due to the female fetus. The ratio is highest in states like Goa (7.3 per cent), followed by Bihar (5.3 per cent), Jharkhand (4.9 per cent), and Punjab (4.2 per cent). Unsafe abortions are the third greatest cause of maternal mortality in India, and close to eight women die from causes connected to unsafe abortions every day, according to the State of the World Population Report 2022 published by the UN Population Fund.

In India, in 2007–2011, 67 per cent of abortions were classified as unsafe and the risk of unsafe abortion was disproportionately higher among the weak and marginalized communities, especially young women in India. Abortions are regarded as unsafe when they are performed by people without possessing the necessary skills and information or in an environment that does not meet minimum medical standards, or both. The risk of dying from an abortion-related complication was highest in young women between the ages of 15 and 19.

Though India’s maternal mortality ratio (MMR) has improved from 113 in 2016-18 to 103 in 2017-19, Rajasthan, Chhattisgarh, Bihar, Uttar Pradesh, Madhya Pradesh, Odisha and Assam have a very high MMR. Despite the landmark Medical Termination of Pregnancy Act of 1971, which provided legal protection, unsafe abortion is still the third greatest cause of maternal death in India, with about 8 women dying from unsafe abortion-related causes every day.