Legalisation would mean that a legislation or a law would guide abortion access and provision in a country. The law may define conditions under which abortion is legal and conditions where abortion would be illegal. What this means is that a pregnant person seeking abortion would have to first figure out whether the reason and condition under which they are seeking abortion is legal or not. Legalisation of abortions would also mean that the State will keep a scrutiny of all abortion procedures.

Decriminalisation on the other hand, means that seeking and providing abortion services would not be a criminal offence at all regardless of the reason for seeking abortions or the gestational period. There is also a difference between partial and full decriminalisation. Currently, the Indian law – MTP Act 1971 – partially decriminalises abortions. “Partial decriminalisation of abortion refers to the liberalisation of restrictive abortion laws where abortion remains punishable under the law in certain circumstances. Partial decriminalisation typically includes reform to recognise exceptions where abortion is legal.” Contrary to this, full decriminalisation of abortion means ensuring that no one is subjected to criminal or punitive sanctions for seeking or having an abortion, performing an abortion, or assisting others to obtain or perform an abortion.

Before the 2020 Amendment of the MTP Act, abortions were only allowed till 20 weeks under certain conditions. At that time, the Supreme Court (SC) allowed a person to have an abortion at 22 weeks. A seven-member medical panel opined that the pregnancy, if continued, would severely impact the woman’s physical and mental well being. The SC ruled that a woman’s right to make reproductive choices is also a dimension of her ‘personal liberty’ under Article 21 of the Indian Constitution. There have been other instances where the court has allowed the pregnant person to terminate their pregnancy at a much later stage. However, these were all contingent on the recommendations of a medical board. Therefore, it is the findings and the decision of this board that determines if the pregnancy can be terminated and not the pregnant person themselves.

When it comes to the debate on decriminalisation, there are several arguments both for and against. Arguments which argue for complete decriminalisation state that this move would make access to abortions much easier and would lead to reduction in and end unsafe abortions. More importantly, it will allow the pregnant person to access abortions at any stage of their pregnancy, without any restrictions. However, the MTP Act was enacted to mainly safeguard abortion service providers i.e. doctors and not the pregnant persons themselves. Under the IPC, anyone undergoing an abortion and anyone aiding them in doing so are both punishable. The MTP Act provided safety to service providers by laying down certain conditions where a registered practitioner can provide the abortion service to a seeker. Had the law been careful of a pregnant person’s rights, it would not have laid these conditions and would have allowed all kinds of abortions. But since the law is doctor-centric, these conditions are laid. A complete decriminalisation of abortions is only possible if the law recognises the right to live freely under the Article 21 of the Indian Constitution.

In the global debate on abortions, partial decriminalisation is considered to be gender discriminating since criminalisation of or failure to provide services that only women require, such as abortion and emergency contraception, constitute discrimination based on sex. It is also important to note that a partial decriminalisation does not do away with the stigma that comes with abortions. Abortion criminalisation with exceptions creates a regime where individuals have to ‘prove’ why they should be exempted from punishments. While restrictive abortion laws can render safe abortion inaccessible, the World Health Organization (WHO) has confirmed that such laws do not reduce the incidence of abortion. Rather, individuals with unintended pregnancies continue to need and seek abortions even when illegal. As a result, they are exposed to an increased risk of unsafe abortions, and avoidable injuries or even death. A full decriminalisation, on the other hand, would also mean that not only the abortion procedure service but also post-abortion care is taken into consideration. Post-abortion care is often dismissed off in the debates on abortions. We tend to forget that whether the abortion procedure was safe or not, post-abortion care is something that finally decides the fate of the pregnant person. But mandatory reporting of abortion (in case it was an unsafe method) and consequent delays are also a violation of human rights.