An unmarried 25-year-old pregnant woman moved Supreme Court on July 19 to abort her foetus of nearly 24 weeks after the Delhi High Court rejected her plea. The woman also challenged Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which allows only some categories of women to seek termination of pregnancy between 20 and 24 weeks.
The incident comes weeks after the US Supreme Court overturned the landmark Roe v Wade judgement which allowed abortions after six weeks in the States.
Although abortion in India has been legal under various circumstances since the introduction of the Medical Termination of Pregnancy (MTP) Act in 1971, we look back at the history of various judgments that were passed and debated to allow women autonomy over their bodies, or somewhat so.
Illegal abortion to Shantilal Shah Committee, the 1960s
Until the 1960s, abortion was illegal in India and was punishable under law. Under Section 312 of the Indian Penal Code (IPC), a woman could face three years of imprisonment and a fine. Section 312 of the IPC criminalizes the intentional causing of miscarriage if it was not done in good faith for the purpose of saving the child.
The discussion of the need for abortion laws started in India in the mid-1960s when the government set up the Shantilal Shah Committee headed by medical professional, Dr Shantilal Shah. The committee was assigned with the task of looking into matters of abortion and whether the country required laws around the same.
In 1964, the Committee suggested the liberalisation of abortion laws in India that will help in reducing unsafe abortions and decrease maternal mortality in the country. Based on the report of the Shantilal Shah Committee, a medical termination bill was introduced in Lok Sabha and Rajya Sabha and was passed by Parliament in August 1971.
The Medical Termination of Pregnancy (MTP) Act came into force on April 1, 1972, and was applicable to the whole of India. It was further amended in 1975 to make it less complicated.
Medical Termination of Pregnancy (MTP) Act, 1972
The MTP Act, which allowed registered medical practitioners to carry out abortion under certain specified circumstances, granted immunity to doctors performing an abortion in accordance with its provisions from the prosecution under Section 312 IPC.
The 1971 law was founded on the principles of the British Act passed by its parliament in 1967 and it allowed abortion till 20 weeks of pregnancy.
Thereafter the Rajasthan government also passed its own regulations implementing the said act in 1975.
Brief amendment of 2002
The abortion law was briefly amended in 2002 to allow the use of the then-new medical abortion pills, mifepristone and misoprostol.
Amendment of MTP Act, 2021
Under the MTP Act, abortion was always allowed till 20 weeks of pregnancy. However, with different cases and situations, the law was amended in 2021 when the abortion limit was pushed to 24 weeks.
In 2008, the Bombay High Court turned down the plea of a couple --- Haresh and Niketa Mehta -- after they sought abortion as the baby would have been born with a congenital heart block. Their application was turned down and Niketa eventually miscarried. This later became one of the fundamental cases to push the abortion limit beyond the 20-week period.
In 2020, the Kerala High Court denied permission to a couple to abort their 35-week foetus.
However, during special cases including a 2015 case, the Gujarat High Court granted a 14-year-old rape victim to terminate her pregnancy beyond the given limit. The court had asserted that the judgment of the ‘special case’ could not be used as a precedent to grant permission in another similar case.
The Medical Termination of Pregnancy (Amendment) Act 2021 came into force with effect on September 24, 2021, after the Rajya Sabha approved the MTP (Amendment) Bill, 2021 on 16 March 2021, which got the President’s nod. The Bill was approved in Lok Sabha on 17 March 2020.
Under the new amendment law, the government set up seven categories of women, who would be eligible for termination of pregnancies between 20 and 24 weeks, under Section 3B of Rules
"(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
(e) mentally ill women including mental retardation
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government."
