The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
1 Legislation of Abortion in India- A Right Based or Need-based law
4 CURRENT ABORTION LAW – DOES IT FULFILL THE PURPOSE OF NEED?
5 PROPOSED MTP BILL, 2020- BRIEF ANALYSIS
5.1 The changes are welcome as below-
6 DOES THE ABORTION LAW SERVE THE PURPOSE OF ‘RIGHT TO ABORT’?
6.1 under the Indian Penal Code (IPC) about causing miscarriage and foetal death. [xii]
7.1.1 due to birth-control failure, January 29, 2020, Available at
In this article, the author has critically analysed the abortion law based on its nature and provides an opinion on the very thought of abortion rights and needs. Under the Medical Termination of Pregnancy Act, 1971 abortion has been legalised but few terms and conditions are protecting the health of the pregnant women. Although there is proper right provided to women for abortion, the necessities of a pregnant woman sometimes clash with the ‘restricted’ rights provided in the law for termination of pregnancy. This has become not only a legal issue but also a social issue since several pregnant womenhave often ended up going to the “fake clinics” to fulfil their needs to abort and this article talks about how the abortion laws in India have served the purpose of abortion for women.
Currently in India abortions are performed following the law stipulated in Medical Termination of Pregnancy Act, 1971. Ina few abortion cases where a mother needs to seek permission from the judiciary to proceed with the termination of a foetus beyond a certain week, the process often gets truly difficult for some women. Though the abortion law in India has often meant to provide liberal seeming it is not an easy way to get an abortion done in our country. While giving birth to a baby is more supported, a woman choosing to abort her child does not get treated with the utmost care and support that are needed. The decision of abortion is generally objected or disapproved of, met with several judgments. Besides, women’s rights are also not properly recognized. [i]
The legal position of abortionexplains the State’s viewson abortion. The issue of abortion in India is governed by the Medical Termination of Pregnancy Act, 1971. This Act allows pregnancies of up to 20 weeks to be terminated (with the consent of the woman). [ii] While the termination of a pregnancy of upto 12 weeks requires the opinion of one registered medical practitioner, in case of a pregnancy of beyond 12 weeksupto 20 weeks, two medical practitioners’ opinions are required. These practitioners need to form an opinion in good faith that:
1. The continuance of the pregnancy would pose a risk to the mental or physical health of the pregnant woman,
2. Or that the child, if born, will ‘suffer from such physical or mental abnormalities as to be seriously handicapped’.
Section 3(2)(b) (ii) [iii] of MTP Act, 1971 clearly explains that a rape victim, if desires for the termination of pregnancy then it can be allowed on the presumption of “grave injury”.When in May 2017, an HIV-positive destitute rape victim approached to terminate her pregnancy the plea has been rejected by the Patna High Court saying that “it was a compelling responsibility of the state to keep the child alive”. Later, the Supreme Court granted permission to abort the then 26-week old foetus, directing an AIIMS medical board to examine her. It held that “a woman, who has already become destitute, being sexually assaulted and suffering from a serious ailment, should not go through further suffering. The quintessential purpose of life is the dignity of life and all efforts are to be made to sustain it.” [iv]
However, in January, 2021 in a recent case Gujarat High Court, comprising the bench of Justice B. N. Karia has denied permission to abort to the 26 weeks pregnant 13 year old rape victim.
Time plays a vital role in the whole process. It is often observed that several women get to know about their pregnancy after 3 months when
the foetus is already 12 weeks old. Then the tests regarding determining the foetus’s health take time as well. The abnormalities in a foetus can be noticed after the stated maximum period of 20 weeks. [v]
Inthe case ofDr Nikhil Dattar&Ors. v. Union of India, Nikhil Dattar, the petitioner was approached by a 22 weeks pregnant woman with a foetus detected to have fluid in the brain but was legally prohibited from terminating the pregnancy (because of the upper limit of gestation period being 20 weeks in MTP Act, 1971). The baby was born with no bowel control and other serious medical problems. Being able to live for only a few yearshas left a lifelong impact on the family given the fact that they were not financially sound and
had spent all of their earnings to the baby’s care.[vi]
Although the current abortion statutehas failed to fulfil the need for abortion, the courts have often given a lawful nod
to many pregnant women those who required abortion.
So, here are few exceptions to the MTP Act, 1971-
There are cases where High Courts have even provided permission to the unmarried women to terminate an unplanned and unwelcomed pregnancy only by approaching to take note of her mental health and
financial situation as a single mother.
In June 2020 The Bombay High Court has allowed a 23-year-old unmarried woman to terminate her 23-week pregnancy and
observed that continuing it will lead to a risk of “grave physical and mental injury to her”. A Division Bench including Justices S.J. Kathawalla and Surendra Tavade hear a plea file by a woman as she was seeking permission to terminate the pregnancy.[vii]
However, the Supreme Court has often allowed termination of pregnancy upto 32 weeks of gestation period when needed.
In September 2017 the Court allowed a 13-year-old girl to terminate her pregnancy at 32 weeks with authorization from a registered medical board. The Court stated, “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and
above all the report of the Medical Board . . . we think it appropriate that termination of pregnancy should be allow.”[viii]
So, it is fair to opine that judiciary has often gone beyond the question of rights and legislations and only took care of what is right according to the circumstances and the health factors of pregnant women seeking abortion only when they felt the need. Sadly, the women’s choices and rights are often out of the question and
not equally given importance where only reasons behind the abortion prevaile to get permission.
After several years of scrutiny, and attempts to making modifications the Union Cabinet has finally approved the Medical Termination of Pregnancy (Amendment) Bill, 2020, to make responsible amendments for providing better service for women seeking an abortion. Union Human Resource Development Minister Prakash Javadekar expressed his view regarding the amendment, he said:
“The move will ensure that women have reproductive rights over their bodies.” [ix]
1. Section 3 of the MTP Bill, 2020 proposes to increase the upper limit for abortion from 20 weeks to a maximum of 24 weeks. Till 20 weeks a woman can get the permission of abortion according to the opinion of one registered practitioner and
beyond that till 24 weeks a woman has to take the opinion of two registered practitioner.
2. Under the Bill, every state government is require to constitute a Medical Board. These Medical Boards will consist of the necessary expert members- a gynaecologist, a paediatrician, a radiologist or sonologist, and
any other number of members as notified by the state government.
The bill has perfectly satisfied the need of the “permanent mechanism” for safe and secured abortion for women in India.
3. The Bill also amends the Explanation no. 2 of Section 3 (2) (ii) of MTP Act, 1971 to replace ‘married woman or her husband’ with
‘woman or her partner’.
This change has increased the scope of legal abortion for unmarried women. Earlier in the MTP Act, 1971 there was no mention of unmarried women seeking an abortion. So, by changing the word from married woman to only “woman” has given any woman irrespective of their relationship/marital
status the chance to seek legal abortion. [x]
All the various amendments done in the MTP Bill, 2020 has focused on providing safe abortion to women where women can freely
seek abortion concerning a registered medical practitioner’s opinion for that.
Section 3(2)(b) of the Medical Termination of Pregnancy Actpermits the abortion of a foetus up to 20 weeks of gestation period.[xi] Beyond that period, unless a direction by a high court is effect considering a report from
an expert medical team of any state-run hospital, the termination cannot be perform.
Being adopted almost 50 years ago, when many women were not able to exercise any of their rights, the MTP Act was aimed at “providing for the termination of certain pregnancies by registered medical practitioners.” It is noticeable that the legal framework of abortion is not based from a women’s rights perspective, but instead directed towards establishing where registered medical providers can besaved from penalties
In March 2017 The Supreme Court rejected the plea of a 37-year-old Mumbai resident woman pregnant with 26 weeks old foetus with ‘Down Syndrome’ and as per report, it could be born with physical and mental abnormalities. According to a bench of Justice S A Bobde and L N Rao, “While it was sad for a mother to bring up a mentally challenge child, the court could not permit her to abort it.” The judges said that abortion of a foetus over 20 weeks old could be allow only if there was a danger to the life of the mother or foetus had no chance of survival. Also, the judges said that “despite having some deficiencies children with Down syndrome are
as affectionate as any normal child and they can lead a normal life.”[xiii]
Hence proved, conclusively, Abortion is a conditional right according to its current legal position in India.[xiv]The restrictive abortion laws in India are fairly debatable and have been challenge several times as the current law does not consider a woman
as an individual with autonomy over her own body.[xv]
At last, it should be noted that termination of pregnancy is purely a personal and medically determine choice which a pregnant woman has every right to make.For a government that speaks of empowerment of women, it is high time it shifts its focus towards the need for better family healthcare, particularly legalities over abortion at any stage provide it is safe for the woman. The MTP Bill 2020 after several efforts has recognised the need of both married and unmarried women to have equal access to safe abortion but not a single provision in the amendment bill refers to allowing autonomy to women
over their bodies in terms of deciding to abort.
It must be note that restrictive abortion laws should be liberalise according to societal changes. Women, irrespective of their marital status should be provide access to safe abortion services and also quality post-abortion care such as counselling, etc. However, the abortion laws in India still lack the rights-based approach and rather the law continues to provide a ‘needs-based’ approach. With the MTP Bill, 2020 we have taken one step forward towards a better abortion law in India
but there is still a long way to go to fulfil the need of a proper and just abortion law.
[i] UtkarshAnand, ‘Woman’s Right to Abort Pregnancy Not an Absolute Right, Centre Tells Supreme Court’, News18 India, DECEMBER 16, 2019 Available at
https://www.news18.com/, accessed on last 14th August 2020
[ii] Section 3 sub-section 4(b) of MTP Act, 1971, “no pregnancy shall be terminated except with the consent of the pregnant woman”-
https://tcw.nic.in/Acts/MTP-Act-1971.pdf
[iii] MTP Act, 1971 Section 3 sub-section (2) (b) (ii) “Explanation 1.-Where any pregnancy is allege by the pregnant woman to have been cause by rape, the anguish cause by such pregnancy shall be presume to constitute
a grave injury to the mental health of the pregnant woman.”
[iv]Ms. Z v. The State of Bihar and Others, DipakMisra, J. C.A. 10463 of 2017, S.C.C. 17 Aug. 2017
[v] Dr. Nikhil Dattar&Ors. v. Union of India, (2008) 110 BOM. L. R. 3293.
[vi] Yameena, The MTP Act And Why Women Should Have The Absolute Right To Abortion, Feminism In India, September 23, 2019, Available at
https://feminisminindia.com/ , Accessed on last 14th August, 2020
[vii]SonamSaigal, HC allows umarried woman to terminate 23- week pregnancy, The Hindu, June 05, 2020, Available at
https://www.thehindu.com/, Accessed last on 14th August, 2020
[Viii]MuruganKayakkar v. Union of India &Ors., W.P.(C) 749 of 2017, S.C.C., at 2, 6 Sept. 2017
[ix] Moneycontrol.com, Changes in abortion law may allow unmarried women to terminate pregnancy
https://www.moneycontrol.com/news/india/, Accessed on last 14th August, 2020
[x] Loksabha Bill MTP bill, 2020, Available at http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/55_2020_LS_Eng.pdf
[xi] Sub-section (2) of Section 3 of MTP Act, 1971- Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner-
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than
two registered medical practitioners are.
[xii] Section 3 of MTP Act, 1971 states that Pregnancy maybe terminated by registered medical practitioner- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence
under that Code or under any other law for the time being in force, if any pregnancy is terminate
by him in accordance with the provisions of this Act.
[xiii] AmitAnandChoudhary, ‘Woman can’t abort fetus with Down Syndrome: SC’, Times of India, Mar 1, 2017, Available at
http://timesofindia.indiatimes.com/articleshow/ , Accessed on last 14th August, 2020
[xiv] RashmiMabiyan, ‘India’s ‘Conditional’ Right to Abortion’, ET Healthworld, June 07, 2019,
[xv] Id.
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