The Indian Penal Code 1862, which has its roots in the British act called Offences Against the Persons Act of 1861, criminalised abortion. However, a more liberal and comprehensive legal provision for abortions was introduced in 1971. The Medical Termination of Pregnancy (MTP) Act of 1971 allowed abortions under certain conditions and time frame.

Let’s delve into some of the provisions concerning abortion in the Indian Penal Code, 1862. To place things in context, it is important to note that the IPC considered life as sacred. This was extended to the foetus as well. Hence, any form of induced miscarriage, unless done to save the pregnant person’s life, was considered a serious offence and was punishable. Sections 312 to 316 dealt with induced miscarriages and are placed under chapters which dealt with offences against the human body.

Section 312: It penalised any voluntary miscarriage caused to a pregnant person by another person with 3 years of imprisonment and/or a fine. This was a non-bailable, non-cognizable and non-compoundable offence. Even the pregnant person who consented to and voluntarily underwent an abortion could be imprisoned up to seven years and/or fined.

Section 313: It covered instances where a miscarriage was induced without the consent of the pregnant person. The person responsible would be imprisoned and also fined. The quantum of punishment could extend to ten years or even life imprisonment.

Section 314: It detailed an instance where a person intending to cause a miscarriage ends up killing the pregnant person. The quantum of punishment is more severe if the miscarriage was carried out without consent.

Sections 315 and 316: They penalised any act that causes the death of a foetus or a child after birth.

As you can see, the IPC 1862 dealt with abortions quite severely.  The idea for a more liberalised abortion law was first suggested by the Central Planning Board of the Indian Government in 1964. Within the government’s aggressive push for “population control” policies, abortion, along with contraception, was promoted and recommended as a family planning measure. Calls for a more liberal law were also made due to an alarming increase in abortions and maternal death rates. In order to address these concerns, the Government of India convened a committee headed by Shantilal Shah to make recommendations for drafting an abortion law. The committee was asked to study the socio-cultural, medical and legal aspects of abortion in detail. The committee recommended legalising abortion to protect the health of women and lives on ‘compassionate and medical’ grounds. The recommendations put forth by this committee were accepted and it was on the basis of these recommendations that the Medical Termination of Pregnancy (MTP) Act of 1971 was created.

MTP Act was passed by Parliament in 1971 and it legalised abortions in all states except Jammu and Kashmir. The Act was considered to be pretty liberal considering that it was passed in the 70s. It was hailed as a major milestone in social legislation in the country as it finally brought freedom from unwanted pregnancies.

Text of the Act

The current law on abortion is based on this Act which was ammended thrice. What were the original provisions of the Act? The Act had 8 sections which detail who can access the service, who can provide the service, the time restrictions and also circumstances and conditions under which an abortion can be availed as follows:

Who? Any abortion procedure has to be conducted by a qualified and trained allopathic medical practitioner. In addition, the pills can only be prescribed by a medical practitioner. The practitioner has to have a qualification recognized by the Indian Medical Council Act and needs to have their name in the State Medical register.

When? The MTP Act 1971 allowed pregnancies up to 20 weeks to be terminated; any pregnancy that exceeded 12 weeks required the approval of two medical practitioners.

Where? A pregnancy can be terminated in any hospital established or maintained by the government or in a place which has been approved by the government for the purpose of the act.

Why? The termination could be sought under the following grounds:

1. If the pregnancy causes harm to the physical health or the mental health of the pregnant person.
2. If it is revealed at any stage that the child, if permitted to be born, would be at substantial risk of experiencing disabilities or other medical conditions.
3. If the pregnancy was a result of rape.
4. In the case of contraceptive failure for a married woman and her husband.
5. If the pregnant person is below 18 years of age i.e., they are still a minor, or if they are mentally disabled, the consent of their guardian or parent, in writing is required.

The parliament enacted the MTP amendment Act in 2002 after a long process of deliberation, discussions and consultations with non-governmental and governmental agencies, activists and professional bodies.

The Act in its original version created a lot of red tape when it came to private institutions acquiring approval for abortion facilities. The amendment decentralised the process through which private abortion facilities received approval. The amendment allowed district level committees to approve private facilities to provide services under the MTP Act. This was aimed at increasing the number of centres that provided the services.

The amendment also replaced the word ‘lunatic’ with ‘mentally ill’. This change was to imply that a mentally ill person was someone who needed treatment for any form of mental illness or disorder. Stricter penalties and punishments with imprisonment of 2 to 7 years were added in the event that the pregnancy was terminated in an unapproved facility or by an untrained person. This was done to ensure greater safety and compliance of the pregnant person.

Set of rules in 2003

A new set of rules called the MTP rules were brought out in 2003, which made some more changes. The modified rules set a timeframe for District Committees. They had two months from receiving the application for registration to inspect the facility. Another two months were given to process the application if no faults or problems were detected; and two months after any detected defect was rectified. Every facility was required to have a medical practitioner who can detect any emergency situations or complications and is capable of referring the pregnant person to a facility.

However, the most important change made by these rules was the provision for medical abortions. Under this, a registered, trained and qualified practitioner could now prescribe drugs, i.e. mifepristone and misoprostol in a clinic setting with the intention of terminating pregnancy of up to seven weeks. This is allowed if the practitioner also has the provision to conduct a surgical abortion in the event of any failure or complications. However, mifepristone, as per the Drug Controller of India, can only be prescribed by a gynaecologist. This often restricts access to pregnant people in rural settings.

A few years later, a group of experts was convened by the Government of India to review the existing provisions of the MTP Act and to suggest amendments. This was done after the government took notice of issues related to access to safe abortions. The experts analysed and studied different aspects of abortion from 2006-2010. In 2014, the Ministry of Health and Family Welfare released The Medical Termination of Pregnancy Amendment Bill 2014 based on the proposals made by the committee.

The Bill intended to expand the provider base to include medical practitioners with bachelor’s degrees in Ayurveda, Siddha or Homeopathy. Nurses, with a three-and-a-half-year degree and registered with the nursing Council of India were also recommended to be included as legal providers. The Bill also recommended that the permitted gestation limit be increased beyond 20 weeks. This would ensure that an abortion could be availed at any point of the pregnancy. This would be effective, especially in cases where foetal abnormalities can be detected only at a much later stage of the pregnancy. It was also recommended that a gestation limit be set for safe abortions for vulnerable groups which may include survivors of rape or incest, people with disabilities and single, i.e. unmarried or divorced persons.

The Bill also suggested that the condition of authorization from two medical providers be reduced to just one. This is because procuring authorization from two providers is often a hindrance to accessing safe abortion services. It is also necessary to keep up with the medical advancements and technology. The MTP Act of 1971 stated that contraception failure was grounds for abortions only for married women. The amendment proposed to change that and make it grounds for any pregnant person, married or not.

Furthermore, the amendment also sought to reduce confusion when it came to language and proposed to define ‘termination of pregnancy’ exactly. It also suggested that ‘registered medical practitioner’ be replaced with ‘registered health care provider’.

In March, 2020, the MTP Amendment Bill was passed in the Lok Sabha. The amendment added the definition of ‘termination of pregnancy’ as a procedure undertaken to terminate pregnancy either surgically or medically. With this amendment, any pregnancy within 20 weeks, may be terminated with the approval/opinion of one medical practitioner. Termination of pregnancies between 20-24 weeks will require the opinion of two medical practitioners. Termination of pregnancies up to 24 weeks is permitted to only certain categories of pregnant people, as certified by the central government. Additionally, the provisions/norms for the medical practitioner whose opinions have to be sought, would be notified by the central government. The Bill states that the upper limit for gestation period for termination of pregnancies would not be applicable in cases where termination is absolutely necessary due to detection of serious foetal abnormalities. A Medical Board, to be constituted by every State Government, will be responsible for the diagnosis. The board will include a gynaecologist, a paediatrician, a sonologist and others as recommended by the government.

Originally, the Act allowed abortion as a recourse only for ‘married women and their husbands’ in the event of contraception failure. The amendment changed it to include ‘woman and her partner’. The Bill also provided protection and privacy to people who have had abortions by mandating that the name and details of the person may not be revealed by the medical practitioner to anyone except to a person authorised by law. Any violation of this will lead to imprisonment up to a year, or a fine or both.