Let’s critically assess the law in its current form (post the 2020 amendment). An oft quoted criticism that the law faces is that it is still not rights-based. What this means is that the act does not recognise the fact that people have authority over their respective bodies and lives and thus, need to be able to decide themselves whether a pregnancy is to be taken to term or not. The act is doctor-centric. Since the MTP Act of 1971 was the first time in India that certain abortions were going to be allowed, it took from the previous legislation on abortions i.e. the IPC of 1862. According to the IPC 1862, any form of induced miscarriage, unless done to save the pregnant person’s life was considered a serious offence and was punishable. Under this, both the pregnant person and the doctor providing this service would be punished. In the language of MTP Act 1971 and from the provisions provided, it is clear that the act was brought to safeguard medical practitioners. It was recognised that abortions are necessary under certain conditions and so, to protect the doctors then providing these services, the act was passed. The very name of the act – Medical Termination of Pregnancy – shies away from using the term ‘abortion’. Kumar (2020) says in her article that the MTP Act was “aimed at ensuring that abortion laws in the country aren’t framed as granting women a choice or a right to undergo safe abortions, but as procedures to protect doctors against prosecution for conducting abortions.” The act is also not rights-based because it gives the final say to the doctor providing the service and not the person seeking it. This is again a violation of not only reproductive rights but also human rights!

Access to information and services on abortions is a human right. This was discussed in the International Conference on Population and Development held in Cairo in 1994 where 179 governments including the Indian government agreed that free and informed decision-making about pregnancy and childbirth is a basic human right. This happened more than 25 years ago and yet, abortion is not always viewed as a human right. It is often touted that the right to live for the unborn foetus trumps the right of the pregnant person to decide what happens with their body. While this argument flouts other basic human rights like the right to autonomy or the right to bodily integrity, it still prevails in society. This prevents a large section of the population (mostly women) from exercising choice and control over their reproductive health, which may reinforce gender-based discrimination as well. The denial of unsafe abortions also violates the right to a humane treatment. Also, denial of abortion services has been explicitly determined to cause serious mental and physical sufferings.

The Article 21 of the Indian Constitution provides right to life and personal liberty to all citizens of the nation. It reads, “no person shall be deprived of his life or personal liberty except according to a procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc. To be able to live a dignified life must then include the right to autonomy over one’s own body. But the law on abortion despite its progressive nature and the various amendments it has undergone, still falls short in acknowledging this right.

The law’s language only talks about women as if it is only women who can get pregnant. To not recognise trans identities is to erase a person’s existence. Even in the latest amendment to the act (in 2020), the proposed bill only mentioned women. The current framework on abortion is also reflective of society’s heteronormative and patriarchal conception of family planning as a means of population control rather than respecting the pregnant person’s right to choose. Another gap is when it comes to medical abortion. The pills can be prescribed only by a gynaecologist and are supposed to be available only through registered medical facilities. Seems like a harmless provision, but it has huge ramifications. Pregnant persons in rural areas might find it difficult to access gynaecologists and facilities.